Montana Supreme Court Case to Take Stage at UM’s Dennison Theatre

March 30, 2018

MISSOULA – The Montana Supreme Court will hear oral arguments in a court case at 9:30 a.m. Friday, April 6, in the Dennison Theatre at the University of Montana. The case is Kendra Espinoza, Jeri Ellen Anderson and Jaime Schaefer v. Montana Department of Revenue and Mike Kadas.

An introduction to the hearing begins at 9 a.m. with Professors Pippa Browde and Anthony Johnstone, both of UM’s Alexander Blewett III School of Law. The hearing is expected to last an hour and a half. The public is invited to attend, along with students from UM and local schools.

The question before the Montana Supreme Court is whether the Montana Constitution prohibits tax credits for donations to scholarship organizations that could ultimately go toward religious schools.

In 2015, the Montana Legislature passed a law to provide a $150 tax credit to donors supporting scholarships for private schools. Article X, section 6 of the 1972 Montana Constitution contains a “no aid” provision that prohibits “any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

After hearing concerns about the tax credit’s constitutionality, the Legislature inserted into the law an instruction that it “must be administered in compliance” with this “no aid” provision and a related section of the Montana Constitution. Nearly 90 percent of the otherwise eligible private schools in Montana have a religious affiliation. Citing the Legislature’s instruction, the Montana Department of Revenue implemented the law with a rule that religious schools are ineligible for scholarships supported by the tax credits.

A group of school parents in Flathead County wanted scholarships supported by the tax credit for their children to attend religious schools and they sued the Department of Revenue in state district court.

The parents argue that the department’s rule is not authorized by the tax credit law passed by the Legislature, and that the tax credit is constitutional under “no aid” provision. Second, they argue that the department’s rule unconstitutionally discriminates against religious schools under the Montana and United States constitutions.

A district court agreed with the first argument and enjoined the department from enforcing the rule. The department appealed to the Montana Supreme Court, arguing that without the rule the state would be aiding religious education in violation of the “no aid” provision of the Montana Constitution.

Several interest groups from Montana and across the nation have filed briefs in the case as amici curiae, or friends of the court. The court will hear arguments from the department and the parents.

For more information, call Sara Kryder, the Blewett School of Law director of communications and events, at 406-243-5730 or email sara.kryder@umontana.edu.